Abbildungen der Seite


was held to be vested in the king, and was accustomed to be granted by letters-patent. We have seen, in a former chapter of this work, that Lord Mansfield considered this right of the crown to be founded upon property, like the right of a private author or his assigns, and consequently that he held it tenable, in the cases in which the property of the crown could be traced, independent of reasons of state or of naked prerogative. But the subject is attended with great difficulties, growing out of the fact that the right has at various times been exercised as a naked prerogative, and as founded in reasons of state policy, though it seems to be clear that it was also sometimes rested upon property. It is not my purpose to endeavor to decide the very intricate questions arising under this branch of the subject, but simply to state the doctrines which have prevailed in the law of England, with reference to the principal objects to which this right has been supposed to attach.?

1. The English Translation of the Bible. Sir William Blackstone says, that the claim of the king to the exclusive printing of the English Bible rests upon the two grounds of original purchase, and of his being the head of the church. Lord Mansfield held it to be a mere right of property, the king having bought the translation. The translation which the

101: The Unite artikelserowe has over the

· Millar v. Taylor, 4 Burr. 2401. The University of Cambridge, 1 BI.

2 For a more full discussion of 105, 113, Yorke, solicitor-general, the prerogative copies, see Godson argued, that the crown has no preon Patents, p. 316, 331.

rogative at common law over the 3 2 Black, Com. 410.

art of printing, but is merely enti• 4 Burr. 2405. In Baskett v. tled to some special copyrights, among which he enumerates the p. 107. Manners v. Blair, 3 Bligh's translation of the great English R. (N. S.) 402, 403. Bible under Grafton, performed at 92 Evans's Statutes, 17, 18, the king's expense. Lord Mansfield, notes. Maugham, 107, and the rewho presided, seems to have taken marks of Lord Chancellor Clare, the same view of the king's right, there cited. Lord Gifford's obser: then, and in the subsequent case of vations, in Manners v. Blair, 3 Millar v. Taylor, where he expressly Bligh's R. (N. S.) 394, 398. asserts the king's right by purchase. 3 Universities of Oxford and Cam

king was supposed to have bought, or to have had printed at his own expense, was that executed in the reign and under the superintendence of King James I.

The notion of private purchase seems to be now abandoned ; 1 but the right itself, whatever it may be founded on, seems to be fully recognized, although it has been the subject of learned doubts, on the part of respectable authorities. In the case of an application made to Lord Eldon, for an injunction against the king's printer in Scotland, who had a patent for the sale of Bibles, to restrain him from printing or selling Bibles in England, the question was between rival patentees. The injunction was granted upon motion, and before the hearing, upon the ground that possession, under color of title, was sufficient for an injunction, until it was proved at law that there was no real title. Subsequently, the converse of this case came before the house of lords, the question being whether the king's printer in Scotland could interdict the sale in Scotland of Bibles imported from England. In this case, the right of the crown to grant a patent for the exclusive


· Maugham on Literary Property, bridge v. Richardson, 6 Ves. 689.

printing of Bibles was elaborately discussed by Lord Chancellor Lyndhurst, in moving the judgmentof their lordships. He defined the nature of the right, as flowing from the duty imposed upon the chief executive officer of the government, to superintend the publication of acts of state, and of the works upon which the established doctrines of religion are founded — a duty imposed upon the king, and carrying with it a corresponding prerogative.'

* Manners v. Blair, 3 Bligh's R. it arose out of the case of Manners (N. S.) 391, 402. In this case, the and Miller v. Blair, which was belord chancellor said, “The princi- fore your lordships' house two or pal respondents in this case are the three sessions ago. When that case king's printers in Scotland. They came on for argument, and was arhold that office under a patent from gued at your lordships' bar, it octhe crown. The appellants are curred 10 the learned lord who then members of certain Bible societies presided here (Lord Gifford), that in Scotland, and have been in the there was a doubt as to the validity habit of importing Bibles from of the patent, and as to the power England ; and the material question of the king to grant a patent of that to be decided in this case, is whether description. I do not mean to sugor not the king's printers in Scot- gest that the noble and learned lord land have, by virtue of their office expressed any opinion upon that and their patent, a right to exclude subject, but that he was desirous, persons from importing Bibles, and before he decided that question, that the other works which are contained that point should be argued at your in the patent from England ? lordships' bar; but which was in

"Two important questions were fact, never argued in the particuraised in this case. One, which was lar case, because the case in which raised, and which was argued at I am about to propose that your lordgreat length in the court below, and ships should give judgment, was beargued very ably at your lordships' fore the courts below; and being bar, was as to the right of the crown before the courts below, the point to grant a patent, the effect of which was raised before the judges of the shall be, to prevent persons in Scot- court in Scotland, which had not in land from importing Bibles, and fact been raised in the case of Manother works of the description men- ners and Miller v. Blair; and that tioned in the patent, certain religious case having come before your lordworks, from England; and the se ships upon appeal, it was considered cond question turned upon the par. more convenient and proper that the ticular construction of the terms of argument, with respect to the vathis patent.

lidity of the patent, and with respect “ With respect to the first question, to the prerogative of the crown,

The effect of these decisions is, that so long as there are separate subsisting patents for England

should be on that particular case, of opinion, that it is to be founded than on the case of Manners and on the circumstance of the translaMiller ; but your lordships' decision tion of the Bible having been actuin the one case, will be of course ally paid for by King James, and its governed by the decision in the having become the property of the other.

crown, and therefore it has been re" In conducting the argument, ferred to a species of copyright. with respect to the prerogative of the Other judges have referred it to the crown, reference was made, and circumstance of the king of England very properly made, to the cases of being the supreme head of the prerogative in England. For two church of England, and that he is hundred years and more, the kings vested with the prerogative with have, in England, granted patents reference to that character. Other to their printers here, as extensive judges have been of opinion, and I as the patent we are now consider- confess, for my own part, I am dising, and perhaps more extensive, posed to accede to that opinion, that but extensive enough to raise the it is to be referred to another conquestion we are now considering. sideration, namely, to the character In England, the power of the king of the duty imposed upon the chief to grant patents of this description, executive officer of the government, or to appoint to such an office, has to superintend the publication of the never been seriously questioned. acts of the legislature, and acts of Those patents have from time to state of that description, and also of time come under the review of our those works, upon which the estab. courts, and the judges have been lished doctrines of our religion are called upon to decide upon them. founded, – that it is a duty imposed One case occurred before Sir Joseph upon the first executive magistrate, Jekyll, so far back as the year 1720, carrying with it a corresponding and others at different periods, both prerogative. That was the opinion in the courts of equity, and also be- of Lord Camden, as expressed in fore this house during the last cen- the case of Donaldson v. Becket, tury; and I would stale it as a point (4 Burr. 2408.) in most direct and not admitting now of doubt or con- eloquent terms in this house : that troversy, that as far as relates to the was the opinion also expressed by office of king's printer in England, Chief Baron Skinner, in the case the crown has the prerogative to of Eyre and Strahan v. Carnan ; grant a patent as extensive as that (Court of Excheq. 1781.) and I we are now considering, - assum- think that may be collected or ining, for the purpose of argument, ferred to be the opinion of a learned that the patent is as extensive as it and noble earl, now a member of is contended on the part of the re- your lordships' house, from what spondents to be.

fell from that noble and learned lord, " But although the power of the in the case of the Universities of king and his prerogative in England Oxford and Cambridge v. Richard. has never been questioned, it has son. (6 Ves. 704, 5.) been rested by judges on different "If that be so, if that is the true principles. Some judges have been principle upon which this preroga

and Scotland, for the printing of Bibles, no other copies can be sold in either country except those

tive is to be rested, it appears to me head of the church in Scotland; that all difficulty ceases with respect and therefore the prerogative might to the prerogative in Scotland. In well exist in this part of the Scotland, as well as England, pa- island, and yet not exist in Scottents of this description have been land. But, I have already stated, granted without dispute or contest, that I do not refer the prerogafor more than two hundred years. tive to the circumstance of the These patents have at different pe- king being, in a spiritual or ecclesiriods been made the subject of suits astical sense, the supreme head of in the courts of Scotland, and par- the church in England, but to the ticularly in the case of Watson v. kingly character — to his being at Baskett, in the year 1716, or the the head of the church and state, year 1717, which cases came after and it being his duty to act as wards by appeal to the house of guardian and protector of both,lords. In another case, that of the a character which he has equally in King's Printers v. Bell and Brad. Scotland and England. It is perfute, this patent came under the fectly clear, that it is the duty of the consideration of the courts of justice king to act this part, as the guardian in Scotland ; and many other cases of the church in Scotland. That is may be referred to, for the purpose a principle laid down by the authorof establishing the same fact: soities in Scotland as much as in that we have in Scotland, as well as England. By the authority of the England, patents granted succes- statute by which the Reformation sively for a period of more than two was established in Scotland, it is hundred years. These patents have declared to be the duty of the mabeen the subjects of suits. These gistrates, and the king as supreme cases have come to your lordships' magistrate, to be the protector of house; and I do not think, that the church; and in the act of 1690, until the doubt was thrown out by by which the Presbyterian church the noble and learned lord to whom was established, when the EpiscoI have referred, the late Lord palian church authority was finally Gifford, the prerogative of the crown put an end to in Scotland, the same of Scotland was ever called in ques- principle is laid down and acknowltion. Certainly it never did occur edged. I think, therefore, that this to the very able counsel who argued right and prerogative depends upon the case of Manners and Miller v. the king's character as guardian of Blair, in the court below, seriously the church and guardian of the to consider or to contest that point. state, to take care that works of this

"In the course of this argument it description are published in a corwas assumed, as the basis of a part rect and authentic form ; and that of an argument, that the prerogative those arguments upon which the auin England depended upon the king's thority rests in this country apply character as supreme head of the also in Scotland. church ; and it was argued, that that “But it was said at the bar, that principle did not apply to Scotland, in England, as far as relates to the for that although the king was the translation of the Holy Bible, we supreme head of the church in have the translation recognized by England, he was not the supreme public authority, introduced into the

« ZurückWeiter »